The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, September 20

The Illinois Supreme Court handed down seven opinions on Thursday, September 20. The court unanimously upheld a state law that established rules for not-for-profit hospitals to avoid paying property taxes and ruled that law firms bringing qui tam actions against a corporation are entitled to attorney fees for outside counsel, but not fees for work done by the firm’s own attorneys. It also upheld the statutory summary suspension of a man’s driver’s license following his arrest for DUI drugs, dismissed a defendant’s appeal on procedural grounds, affirmed a modified appellate court judgment considering fee assessments, upheld an appellate court’s decision to not award a man additional days of credit against his prison sentence, and upheld a defendant’s conviction of drug-related homicide.

Oswald v. Hamer 

By Michael T. Reagan, The Law Offices of Michael T. Reagan

Oswald v. Hamer, 2018 IL 122203, holds that Section 15-86(c) of the Property Tax Code, which provides for property tax exemptions for not-for-profit hospitals and their affiliates for specific property, is not unconstitutional on its face. More specifically described, Section 15-86(c) provides that such a hospital “satisfies the conditions for an exemption under this Section with respect to the subject property, and shall be issued a charitable exemption for that property, if the value of services or activities listed in subsection (e) for the hospital year equals or exceeds the relevant hospital entity’s estimated property tax liability....” Whether the word “shall” in the statute is to be regarded as mandatory or permissive was a key issue in the case.  

Justice Neville’s opinion for a full and unanimous court commences with an efficient exposition of the constitution, sovereign power, and related principles, proceeding from the general to the specific, in sketching the power of the General Assembly to tax. “The Illinois Constitution does not grant power to the legislature but rather restricts the legislature’s power to act. ... The legislature’s power to tax is plenary and is restricted only by the federal and state constitutions.” Article IX limits the power of the legislature to allow property tax exemptions to, generally, units of government, certain agricultural uses, “and for school, religious, cemetery and charitable purposes.” 

That constitutional provision places a constitutional limit on the legislature’s authority to exempt, requiring charitable use, as relevant to this case. Existing case law requires that a party claiming an exemption must prove that the use of the property is within both the constitutional authorization and the terms of the statute under which the claim of exemption is made.

Familiar principles of constitutional law and statutory interpretation carried this analysis along. There is a strong presumption of constitutionality, the legislature is deemed to be aware of the constitution, and it is presumed that the legislature intended to enact constitutional legislation. Accordingly, the court construed “shall” to be permissive, and not mandatory, in part to avoid possible constitutional infirmity. Therefore, a hospital seeking this tax exemption must document the services meeting the statutory criteria, and “additionally, the hospital must show that the subject property meets the constitutional test of exclusive charitable use.” The court emphasized that only a facial challenge to constitutional validity was presented. That challenge failed here because it cannot be said that an applicant would never satisfy both the statutory and constitutional requirements. The court admitted of the possibility that future specific applications might produce constitutional problems as applied. 

The court made note of an extant limitation on the participation of amici. An amicus takes the case as it finds it, with the issues framed by the parties. Thus, an amicus may not assert issues not raised by the parties, as was stated to be attempted here.

State of Illinois ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc.

By Michael T. Reagan, Law Offices of Michael T. Reagan

This case presented a single issue: Where the relator in a successful qui tam action brought for the benefit of the state under the False Claims Act is a law firm, does that act entitle the firm to an award of both a reasonable amount for collecting the penalty and damages from the defendant and an additional amount in attorney fees for the services performed by the firm’s own lawyers for the same work? A unanimous court, with Chief Justice Karmeier writing the opinion, and Justice Neville not participating, answered that question in the negative. The court affirmed the appellate court, with both courts permitting the plaintiff firm to recover the small amount of fees it had incurred to outside counsel it had hired, but disallowing the firm to recover the substantial fees it claimed for the work performed by the firm’s own lawyers. Both courts drew upon an ancient line of precedent.

The underlying claim was that My Pillow had failed to collect money owed under the Use Tax Act for sales of its products online and by telephone. The circuit court awarded the plaintiff firm compensation for bringing this action in the amount of 30 percent of the proceeds, the largest amount permitted by the act. The circuit court also awarded substantial fees and costs for the work done by the plaintiff law firm.

Although the supreme court reached back to 1861 for precedent phrased in the then-contemporary vernacular (“would be holding out inducements for professional men to seek such representative place to increase their professional business, which would lead to most pernicious results”), the court traced the bar against self-recovery for fees down through abundant modern authority. “We agree with the appellate court that the line of precedent running through Hamer (v. Lentz, 132 Ill.2d 49) and its progeny leads directly to the case before us today and determines its outcome.” The law firm was proceeding pro se. “When Diamond the law firm made a legal decision, it was not counseling a client.  It was talking to itself.” The opinion developed in depth the policy reasons why self-represented lawyers should be treated the same as any other pro se litigant when it comes to the award of attorney’s fees. 

People v. Gocmen

By Kerry J. Bryson, Office of the State Appellate Defender

Ahmet Gocmen was found semiconscious in the driver’s seat of his running vehicle, partly off the road and partly in a lane of traffic. The responding officer observed an aluminum can, cut in half, with burn marks and brown residue on it. The residue field tested positive for opiates. The officer also located a syringe inside the vehicle, as well as a baggie with brown residue, and a fresh track mark was observed. Gocmen told the officer he was diabetic. Gocmen was arrested for DUI drugs and refused chemical testing, resulting in the statutory summary suspension of his license.

A petition to rescind the suspension was granted by the circuit court and affirmed by the appellate court, but the Illinois Supreme Court reversed the rescission. First, the court pointed out that the trial court had erred in considering the evidence in the light most favorable to the defendant at the rescission hearing. The supreme court clarified that because it is the defendant’s burden to make a prima facie showing that rescission is proper, the trial court cannot favor the defendant’s case.

The main source of contention regarding the suspension was whether the relatively inexperienced officer had reasonable grounds to arrest Gocmen for DUI drugs. The court concluded that an officer need not be qualified as an expert to be able to conclude that defendant’s impairment was due to his use of illegal drugs. While an officer’s expertise and experience may make him more credible than a rookie officer, there is no categorical requirement that the officer give expert testimony. Instead, each case requires consideration of the totality of the circumstances.

Here, the supreme court concluded that those circumstances established reasonable grounds to arrest. Gocmen was semiconscious and disoriented. The burned can in the car tested positive for opiates at the scene, and a rookie officer would be aware of this method of cooking drugs for injection. And, the baggie with residue, while untested, was at least indicative of the possession of a controlled substance. While Gocmen told the officer that he was diabetic, he did not testify to this under oath and did not present any evidence to corroborate his claim that he was diabetic at the rescission hearing. Notably, the court relied on information from to conclude that the fresh track mark on Gocmen’s arm was not consistent with a diabetic insulin injection because insulin is injected subcutaneously into the fatty tissue and not into a vein.

People v. Bingham

By Kerry J. Bryson, Office of the State Appellate Defender

In 2014, Jerome Bingham was convicted of theft for taking six pallets, valued at $72, from behind a Kmart store. Normally a misdemeanor, Bingham’s theft conviction was a felony because of a prior conviction of retail theft. And, because Bingham had a 31-year-old conviction of attempted criminal sexual assault, his 2014 felony theft conviction triggered a duty to register as a sex offender. 

Bingham had not been required to register at the time of his 1983 conviction because the Sex Offender Registration Act (SORA) was not enacted until 1986. Instead, his duty to register was triggered by a 2011 amendment to SORA, which imposes upon any sex offender or sexual predator never previously required to register a duty to register if convicted of any felony after July 1, 2011.

On appeal from his theft conviction, Bingham challenged the duty to comply with SORA as both unconstitutional as applied to him and an ex post facto violation. While the appellate court rejected those challenges on the merits, the Illinois Supreme Court vacated those portions of the appellate court’s decision on the basis that the SORA obligation was not part of the judgment on appeal.

A notice of appeal confers judgment on the reviewing court to consider the judgment, or parts thereof, specified in the notice. And, Supreme Court Rule 615(b) defines the scope of appellate review by reference to the judgment, allowing a reviewing court to “reverse, affirm, or modify the judgment,” or to modify “proceedings subsequent to or dependent upon the judgment,” or even to “reduce the punishment imposed by the trial court.” While Bingham must comply with SORA as a result of the 2014 theft conviction currently on appeal, his SORA obligations are a function of statute rather than a judgment imposed by the trial court. Even if SORA is construed as punishment, Bingham’s unconstitutional-as-applied and ex-post-facto challenges could not be reviewed in the instant appeal because they were not imposed by the trial court.

Instead, the supreme court pointed to two typical avenues for raising the constitutional challenges at issue here. First, the issues could be raised on direct appeal from a criminal conviction for violating the SORA obligations. Second, a defendant could bring a civil suit seeking to have the statute declared unconstitutional and asking to be relieved from being classified as a sex offender and from the obligations under SORA. The court also reiterated the difficulties in addressing an unconstitutional-as-applied challenge first raised in a reviewing court, stressing that the absence of a factual record developed in the trial court is an impediment to appellate review. 

Whether the current sex offender regulatory scheme is constitutional is a question for another case, one where the SORA obligations are part of the judgment before the court.

People v. Harvey

By Kerry J. Bryson, Office of the State Appellate Defender

In recent years, a common issue in criminal appeals has been the erroneous assessment of fines, fees, and costs. In Shane Harvey’s case, the Illinois Supreme Court was asked to consider three such assessments: (1) a DNA collection fee; (2) a sheriff’s fee; and (3) a Crime Stopper’s assessment.

By the time Harvey’s case reached the supreme court, the DNA fee and Crime Stopper’s assessment were moot. The DNA fee had never been imposed, but had been recorded in the clerk’s computer system as the result of a clerical error. A call from the state’s attorney resolved the issue, resulting in the clerk correcting its records. The state conceded that the Crime Stopper’s assessment had been imposed in error because it only applies in cases where the defendant is sentenced to probation, but Harvey had been sentenced to prison. The state noted, however, that the erroneous assessment had been completely offset by Harvey’s per diem credit.

The supreme court declined Harvey’s request to consider the DNA and Crime Stopper’s assessments under the public interest exception to the mootness doctrine. The law as to those assessments was already clear, so there was no need for the court to provide guidance.

As to the sheriff’s fee, the court rejected Harvey’s argument that an Adams County ordinance had not properly increased the fee from $30 to $40 where the ordinance only referred to an increase for service of “civil process” but did not specifically reference the service of criminal subpoenas. The court found that Adams County’s intent was to increase the fee for both, and the reference to “civil process” was specific enough to include criminal subpoenas.

People v. Young

By Kerry J. Bryson, Office of the State Appellate Defender

On appeal from the dismissal of his successive post-conviction petition, Nelson Young argued for the first time that he should have received an additional 183 days of credit against his prison sentence. The appellate court granted Young relief on two other issues, but declined to reach the credit issue because it believed it was without jurisdiction to do so. The Illinois Supreme Court agreed that the additional sentence credit could not be awarded, but on a different basis.

First, the supreme court clarified that the appellate court had jurisdiction over the matter because there was a timely notice of appeal from the final order dismissing the post-conviction petition. The problem, though, was that the credit issue was procedurally defaulted because it had not been raised in the trial court. 

Young argued that sentence credit under 730 ILCS 5/5-4.5-100 could not be forfeited, analogizing it to per diem credit under 725 ILCS 5/110-14. The supreme court rejected that argument, noting that specific language in the per diem statute allowed for that credit to be awarded “upon application.” That language has been construed to allow requests for per diem credit at any time, even for the first time in a collateral appeal. Because no such language appears in the presentence custody credit statute, the supreme court concluded that the legislature did not intend to allow it to be requested at any time.

The court also rejected Young’s argument that a reviewing court could reach the forfeited credit issue under Supreme Court Rule 615(b). The court explained that because this was not a direct appeal, and because the credit issue had not been raised in the collateral pleading at issue on appeal, sentence credit was not part of the “judgment” on appeal and could not be reached under Rule 615(b).

Young made an alternative argument that the request for additional credit could be treated as a motion to correct the mittimus, but the supreme court rejected that argument, as well. The court explained that a reviewing court could only grant such a motion if the mittimus was inconsistent with the trial court’s judgment. Here, though, Young was seeking additional credit that the trial court had never awarded, making his request one for an amended judgment.

Because there were no exceptions to excuse Young’s procedural default of the credit claim, the supreme court declined to review it. The court did, however, grant supervisory relief and remanded the matter to the circuit court with directions to determine the amount of additional presentence custody credit to which defendant is entitled.

In its opinion, the supreme court declined Young’s request to create a new rule allowing correction of presentence credit at any time. In doing so, the court explained that such issues are best resolved in the circuit court where factual disputes can be adjudicated. The court also noted that a similar rule-making request had been made by the state in People ex rel Bakalis v Berlin, 2018 IL 122435, and had been referred to the court’s Rules Committee. As of yet, no new rule has been forthcoming.

People v. Nere

By Kerry J. Bryson, Office of the State Appellate Defender

Augustina Taylor died of a drug overdose on the day after she was released from prison. On the day of Taylor’s death, Jennifer Nere gave her heroin, crack cocaine, a syringe, and a crack pipe. There was conflicting evidence as to whether Taylor had also obtained heroin from another source the day prior to her death and whether Taylor had used heroin earlier on the day of her death.

The primary issue before the Illinois Supreme Court was whether the jury instruction on causation was an appropriate statement of the applicable law. IPI 7.15 states, in relevant part, that to find that the acts of defendant caused the death, the state must prove:

That defendant’s acts were a contributing cause of the death and that the death did not result from a cause unconnected with the defendant. However, it is not necessary that you find the acts of the defendant were the sole and immediate cause of death.

At the outset, the court noted that while jury instruction issues are normally reviewed to determine whether the trial court abused its discretion in giving or refusing a specific instruction, this issue would be reviewed de novo because it involved the giving of an IPI and Illinois Supreme Court Rule 451(a) requires the trial court to use the IPI instruction unless it does not accurately state the law. 

Defendant argued that IPI 7.15 on causation was erroneous in light of the United States Supreme Court’s relatively recent decision in Burrage v. United States, 571 U.S., 134 S. Ct. 881 (2014). In Burrage, the U.S. Supreme Court considered a federal statute imposing an enhanced penalty for a drug distribution where death “results from” the use of such substance. The court ultimately construed that statute as requiring “but-for” causation.

The Illinois Supreme Court engaged in a lengthy discussion of the law of causation. Illinois has long been a “contributing cause” state. While “but-for” causation is sufficient to establish causation in Illinois, it is not required. The court noted that Illinois’s drug-induced homicide statute was enacted against the backdrop of more than 100 years of contributing-cause case law in this state.

The court also noted that in 2006, the Illinois legislature had amended the drug induced homicide statute to state that the death is “caused by” ingestion of the controlled substance, where the statute previously was written as the death “results from” that ingestion. Legislative history regarding that amendment included a statement that it was intended to make the “causation language” consistent with other homicide statutes. This amendment supported the conclusion that “cause” in drug-induced homicide is intended to be consistent with the meaning “cause” has always had in Illinois, which includes “contributing cause.” Thus, IPI 7.15 is a correct statement of the law of causation. The court also declined to abandon contributing cause in Illinois. 

The court did conclude that in this case the IPI should have been modified to refer only to Nere’s delivery of heroin as a contributing cause of Taylor’s death, rather than to “defendant’s acts” as a contributing cause. This modification would have been appropriate because there was evidence that Nere delivered multiple controlled substances but she was only charged with drug-induced homicide on the basis of the heroin. However, the error was harmless because the instructions as a whole clearly conveyed that Nere was only charged with heroin delivery and that the jury had to find the death was caused by the heroin.


Posted on September 20, 2018 by Rhys Saunders
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